dissenting.
I respectfully dissent.
I believe we have'jurisdiction under habeas corpus to address Otey’s claim that the Nebraska clemency procedure violates his rights under the federal constitution. I further believe that the clemency procedure deprived Otey of substantive due process.
I.
The court today reads 28 U.S.C. § 2254 too narrowly, and contrary to holdings of the United States Supreme Court.1 Otey is in custody under a sentence of death. He seeks to forestall execution of that sentence on the grounds that the clemency procedures afforded him violated the United States Constitution. This is the type of claim that the United States Supreme Court has considered on petitions for writ of habeas corpus. Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), was a habeas corpus case in which the Supreme Court examined the state’s procedures for determining whether a prisoner under sentence of death was insane and therefore should not be executed. Otey objects to the state’s clemency procedure; which is the last barrier between him and execution of his death sentence. Ford points to the propriety of habeas in Otey’s case.
Similarly, the federal courts have often reviewed claims that a state’s method of executing condemned prisoners violated the federal constitution, and have done so on habeas review, or have suggested that the claim should have been raised in a habeas petition. See, e.g., Gray v. Lucas, 463 U.S. 1237, 104 S.Ct. 211, 77 L.Ed.2d 1453 (1983) (Burger, C.J., concurring in order denying certiorari); Gomez v. United States District Court, — U.S. —, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992); In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th Cir.1978). In all of these cases the prisoner making the claim was already deprived of his expectancy of life or liberty by the judicial process, but the court examined the constitutionality of the method of execution under a habeas petition.
The Supreme Court in recent months has recognized the significant role clemency plays as a remedy for preventing miscarriage of justice where judicial process has been exhausted. In Herrera v. Collins, — U.S. —, —, 113 S.Ct. 853, 866-69, 122 L.Ed.2d 203 (1993), the Supreme Court, *1133speaking through Justice Rehnquist, held that there is ordinarily no federal habeas review (indeed, no judicial review at all) available for claims of actual innocence based on new evidence discovered after the time for filing a motion for new trial. — U.S. at —, 113 S.Ct. at 869. The appropriate “forum” in which to raise such actual innocence claims is that of executive clemency, which acts as a “fail safe” against executing innocent people. Id. — U.S. at —, 113 S.Ct. at 868. By relying on the existence of executive clemency to justify excluding certain kinds of claims from judicial scrutiny, the Court recognized that clemency procedures are an important last step in the descent to execution. When such a step is conducted in a way that violates the United States Constitution, it is the function of habeas to stay the executioner’s hand.
II.
The majority holds that because there are no standards governing the Board’s pardon decisions, the Due Process Clause has no application. While there are superficial similarities between Otey’s case and Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), there is a theoretical divide between Dumschat’s reliance on procedural due process and Otey’s plea for substantive due process. Dumschat claimed that by granting three-fourths of the applications for commutation of life sentences the Board of Pardons created a constitutional liberty interest or entitlement to commutation, and that he was therefore entitled to a statement of reasons for denial of his application for commutation. Dumschat’s claim of an expectation of pardon was far different from Otey’s substantive due process claim that the clemency procedures are fundamentally unfair in including the state’s chief prosecuting officer as a member of the Board of Pardons. Otey’s claim focuses not on a right to receive pardon, but on a right to seek it before an unprejudiced Board.
III.
Substantive due process protects individuals from government conduct that “shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952). The idea of a prisoner pleading for his life before a board that includes the very official responsible for his prosecution and conviction is shocking to the judicial conscience.
Before 1920, Nebraska vested clemency power in the governor, and the governor had the discretionary power to grant or deny clemency, or take no action. Nebraska established a more formalized procedure in 1920 when it transferred the clemency power to the Board of Pardons. Modifications to the procedure in 1969 gave further structure to clemency proceedings. ' Nebraska statutes mandate that properly filed clemency requests be considered. See Neb.Rev.Stat § 83-1,129 (1987 Reissue). The statutes further mandate that when a petition for clemency is filed, the execution is stayed until the Board rules on the application. Neb.Rev. Stat. § 83-1,132 (1987 Reissue). The application shall be considered by the Board with or without hearing at its next regular meeting, or within 30 days, whichever is earlier. If a hearing is held, it is to be conducted in an informal manner, but a complete record of the proceedings is to be made and preserved. Neb.Rev.Stat. § 83-1,129. The State of Nebraska has thus by its constitution and statutes replaced the sole authority of its governor with a structure that governs the deliberations and proceedings of a Board consisting of the Governor, Attorney General and Secretary of State.
The participation of the Nebraska attorney general as a voting member of the Board of Pardons renders the Nebraska clemency procedure fundamentally unfair.2 Attorney General Stenberg’s statements of personal objectivity at the hearing do not cure this defect.3 By statute, the attorney general *1134advises county attorneys on criminal matters, and appears for the state and prosecutes criminal proceedings in the Supreme Court. See Neb.Rev.Stat. § 84-205 (1987 Reissue). The assistant attorneys general who participated in Otey’s prosecution, sentencing, appeals, and clemency hearing did so in the attorney general’s name.4 Indeed, every pleading submitted by the state in Otey’s case, including the briefs submitted to this court, list the attorney general as the counsel of record. The attorney general, having successfully obtained affirmance of Otey’s death sentence in the Nebraska Supreme Court, can hardly be expected to oppose the execution of this sentence. As prosecutor, the attorney general determined that it served the public welfare to seek the death penalty as the appropriate punishment for Otey. It is unreasonable to assume that the attorney general would freely consider the same sentence inappropriate at a clemency hearing, especially when his own representatives are arguing before him in favor of retaining the sentence. With the attorney general’s position fixed, a petitioner must obtain the vote of the other two members of the panel. Otey received one favorable vote, but not both. The State has created a playing field that is tilted toward denial and is therefore fundamentally unfair.
Given the crucial role of clemency in the states’ capital punishment laws, I believe it violates substantive due process to entrust the pardoning power, even in part, to the state’s chief prosecutor, as was done in Otey’s case. Executions, like convictions, “cannot be brought about by methods that ‘offend a sense of justice.’ ” See Rochin, 342 U.S. at 173, 72 S.Ct. at 210.
For these reasons, I respectfully dissent.
. Further, it inevitably follows from the court’s decision today that Otey will pursue his section 1983 remedy, further delaying the ultimate disposition of his case.
. I should make clear that the issue is not the propriety or impropriety of the Board of Pardons’ decision on the application for grant of clemency, but rather the unconstitutionality of the procedure under which the Board considered Otey’s clemency request.
. The fact that Otey’s counsel withdrew a procedural objection after the attorney general made *1134these statements does not, in my view, constitute a waiver of or otherwise affect Otey's present claims. At the beginning of the hearing, the Governor announced that the proceedings would be informal and that the rules of evidence would not apply. Under these circumstances, Otey's counsel had no obligation to preserve formally his objection.
. The assistant attorneys general presented the State's "case” against Otey at the clemency hearing. Attorney General Stenberg's claim to have no personal knowledge of the content of their presentations does not alter their institutional status as his representatives.